Appeal from the Judgment of Sentence entered on July 26, 2005 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 0405-0297 2/2.
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
Christopher Smith, also known as Darryl Myers, appeals the sentence of death imposed on July 16, 2005 by the Philadelphia Court of Common Pleas after a jury convicted him of first-degree murder,*fn1 possession of an instrument of crime,*fn2 reckless endangerment of another person,*fn3 and criminal conspiracy.*fn4 For the reasons that follow, we affirm his convictions and judgment of sentence.
The evidence of record establishes the following facts. On November 29, 2002, two rival gangs engaged in a gunfight at the North American Motor Inn on City Line and Belmont Avenue in Philadelphia. Appellant, who was known to some by the nickname "Jughead," was a member of one of the gangs, and, during the gunfight, two of his fellow gang members, Michael Allen Finney and Antoine Steed, were killed. Afterward, Appellant's gang decided to avenge the deaths of Finney and Steed; Appellant and several other gang members, including Aquil Bond (hereinafter "Bond" or "co-defendant"), Jawayne Brown, Richard Brown (Aquil Bond's cousin), Vincent Smithwick, and two others named Damar and Lonnie, gathered at the home of Richard Brown's girlfriend, Tammy, to formulate a plan. N.T. Trial, 5/4/05, at 93. The group decided that two members of the rival group, "Brent" and "G Bucks," whom they believed were responsible for shooting Finney and Steed, must be killed. Id. at 94. Richard Brown, the reputed leader of Appellant's gang, gave orders that any member of the rival gang should be shot on sight. Id. at 92.
A day or two later, shortly after midnight on December 1, 2002, Richard Carter was sitting with a female friend on the steps of 4220 Ogden Street. N.T. Trial, 5/5/05, at 10. Several other men from the neighborhood were standing outside on the street, including someone whom Carter knew as "Buck," Brent Jenkins, and Jared Barkley. Id. at 12-13. At one point, Carter noticed a burgundy Park Avenue car circling the corner. Id. at 15. Jenkins was outside as the car circled the corner the first time, but left the area by the time it circled a second time. Id. at 16. As the car circled the corner for the second time, Carter saw the driver's side window open, and saw Bond, whom Carter recognized from the area, exit the car with a gun in his hand. Id. at 18-19. Bond approached an unidentified male who resembled Jenkins; however, apparently realizing that the man was not Jenkins, Bond returned to the car. Id. at 18. The car circled the corner a third time, and then stopped in front of 4210 Ogden Street, at which time Appellant and Bond jumped out of the car and began firing shots down Ogden Street. Id. at 19. Moments before the shooting began, Carter observed Rasheed Abdul Grant, also known as Abdul Brooks, or "Rev," id. at 14, standing near the passenger side of his maroon Pontiac Bonneville, which was parked in front of Grant's father's house at 4219 Ogden Street. Id. at 21-22. When the shooting began, Carter ran. Id. at 19.
At approximately 1:40 a.m., Philadelphia Police Officer Joseph Rogers received a radio call indicating gunshots in the area of 42nd and Ogden Streets and the 800 block of Brooklyn Street. N.T. Trial, 5/4/05, at 179. When Officer Rogers arrived at the scene, he observed Grant lying face down in the street with his eyes open and not breathing. Id. at 179, 181. Rogers radioed for a rescue squad, which arrived approximately ten minutes later. Id. at 180-81. Grant was pronounced dead at the scene at 1:53 a.m., having suffered seven gunshot wounds to his body. Id. at 31-32. Another man, Antwoin Weston, had been shot in the leg and was crawling along the sidewalk. Id. at 185, 187. He was transported to the hospital for treatment. Id. at 187.
At approximately 2:10 a.m., William Whitehouse of the Philadelphia Police Crime Scene Unit arrived at 42nd and Ogden Streets to process the crime scene and observed the following vehicles: (1) a maroon Crown Victoria with two holes in the windshield parked in front of 4210 Ogden Street; (2) a maroon Pontiac Bonneville in front of 4219 Ogden Street, next to which Grant's body was found; and (3) a red Jeep with some damage in front of 4221 Ogden Street. Whitehouse recovered 30 spent gun cartridges from three separate areas of the scene, including the area in front of 4205 and 4207 Ogden Street; the sidewalk in front of 4217 and 4219 Ogden Street; and the street in front of 4217 and 4219 Ogden Street. All of the cartridges were .357 caliber, and it was determined that 19 were fired from a single weapon, and 11 were fired from a second weapon.
Nearly four months after the Ogden Street shooting, on April 13, 2003, Officer Jerrell Short of the 9th Police District was working nightclub detail at 6th and Spring Garden Streets in Philadelphia. At approximately 3:30 a.m., Officer Short observed Appellant and Richard Brown running towards him. Id. at 191-193. Officer Short stopped them and ordered them to stand against a gate and show their hands. Id. at 194. Appellant appeared to be fumbling around the midsection of his pants or jacket. Id. Ultimately, Appellant and Brown ran away, and Officer Short and several other officers, including Officer Short's partner, Officer Gregory Welsh, pursued them on foot. Id. at 195, 202. As they did so, Officer Welsh observed Appellant remove a black gun from his waistband and throw it into the street. Id. at 202. Officer Welsh retrieved the gun, a Sig Pro 2340 .357 caliber black semi-automatic handgun, serial number SP0061985. Id. at 205. He removed the magazine from the gun, as well as one live round from the chamber. Id. Police also collected seven spent cartridges from the area, and ballistics analysis established that five of them came from the gun thrown into the street by Appellant.*fn5 Appellant was captured by police and arrested.
On May 14, 2003, Agent Anthony Tropea of the federal Bureau of Alcohol, Tobacco and Firearms questioned Appellant's girlfriend, Juanita Stokes-Steadley, regarding her purchase of a Sig Pro .357 caliber semi-automatic pistol from the Firing Line Gun Store on November 29, 2002, following the gunfight at the North American Motor Inn. Id. at 56. When first questioned, Stokes-Steadley maintained that she purchased the firearm for her own use, with her own money. Id. Agent Tropea asked Stokes-Steadley to produce the firearm, and she indicated that the gun was in the basement of her residence. Id. When agents went to retrieve the firearm, they found an empty gun box bearing the serial number SP0061985, the serial number of the gun Stokes-Steadley admitted to having purchased. Id. at 57. Upon further questioning, Stokes-Steadley admitted to Agent Tropea that Appellant gave her the money for the firearm and gave her specific instructions to purchase the Sig Pro .357 caliber pistol and ammunition. Id. At trial, Stokes-Steadley testified that Appellant first asked her to purchase the gun two days before November 29, 2002;*fn6 that Appellant gave her the money to purchase the gun and ammunition on November 29, 2002; and that after she purchased the gun and ammunition on November 29, 2002, she gave it to Appellant, and that was the last time she saw the gun. Id. at 57-58; N.T. Trial, 5/2/05, at 36; N.T. Trial, 5/3/05, at 59, 69, 89. It later was determined that 19 of the spent cartridges recovered from the scene of the Ogden Street murder came from this gun.
In September 2003, one of Appellant's fellow gang members, Vincent Smithwick, nicknamed "Scooter," was arrested on federal drug charges. As part of a plea agreement, Smithwick gave a statement to police concerning seven different homicides, implicating himself in two of the murders. Smithwick also provided information regarding the murder of Grant. At trial in the instant case, Smithwick testified that the members of Richard Brown's gang decided to retaliate against their rivals for the November 29, 2002 shooting at the North American Motor Inn. N.T. Trial, 5/4/05, at 92. Smithwick described how, on November 30, 2002, he, Bond, and Jawana Moore, who was Smithwick's half-sister and Bond's girlfriend, went to the Firing Line Gun Store to purchase a .357 caliber Sig Pro firearm. Id. at 95. Smithwick testified that Bond wanted to purchase that particular model because "Richard Brown had one first and liked the model." Id. He also testified that only he and Moore went inside the store, and that Moore actually purchased the gun. Id. The serial number of the gun purchased by Moore was SP0061983. N.T. Trial, 5/3/05, at 168.
Smithwick further testified that he was at the home of Richard Brown's girlfriend, Tammy, on December 1, 2002, when Bond and Appellant stated that they were going to 42nd and Ogden Streets to kill whomever they saw "that was hanging with Brent and Malik [and] G Bucks." N.T. Trial, 5/4/05, at 97. Smithwick recounted that, after Appellant and Bond returned to the house, Appellant bragged that he had shot one man in the leg, and Bond stated that "he needed more bullets" and that both he and Appellant had shot someone in the face. Id. at 98. The following morning, Smithwick learned that someone named Rev, i.e., Grant, had been shot and killed. Smithwick indicated that he spoke with Bond about Rev being killed, and Bond stated, "That wasn't the right person, man." Id. at 99.
Finally, Smithwick testified that a couple of days after Grant was killed, he and Bond were at the home of Chante Baker, another of Bond's girlfriends, at 54th and Girard Streets, when police arrived to arrest Bond on another matter. Smithwick stated that, after Bond and Baker left the house, he returned to the house because he had some drugs inside and wanted to retrieve them. Id. at 107. In addition to removing the drugs from the house, Smithwick also admitted to removing a .357 caliber Sig Pro firearm, the same gun that Jawana Moore purchased for Bond on November 30, 2002, which Smithwick knew Bond kept under Baker's mattress. Id.
Baker also testified at trial. She recounted that, in late November 2002, Bond asked her to purchase a gun for him, but she was unable to do so because she had a prior felony conviction. N.T. Trial, 5/5/05, at 139. She indicated that Bond subsequently advised her that he had another individual, Moore, purchase a gun for him. Id. She testified that she eventually saw the gun, and that Bond kept it underneath her mattress when he stayed at her house. Id. at 140. She indicated that she was at home with Bond when police arrived to arrest him on December 10, 2002, and that she was arrested at that time for attempting to stop the officers from entering the house. Id. at 141. Baker testified that she subsequently asked Smithwick what had happened to the gun that had been under her mattress, and he advised her that he removed it. Id.
On December 10, 2002, police executed a search warrant of the apartment of Richard Brown, also known as Richard Bond or "Mannie-Boo," at 4000 Presidential Boulevard, Apartment 2006. Id. at 118. The police recovered from the apartment two .357 caliber Sig Pro semi-automatic weapons, including one with the serial number SP0061983, which was the serial number of the gun purchased by Moore from the Firing Line Gun Store on November 30, 2002. Ballistics analysis established that 11 of the spent cartridges recovered from the scene of the Ogden Street shooting came from the gun purchased by Moore. While the bullets lodged in Grant's body were too damaged to be positively matched to either Appellant's or Bond's weapon, the bullets were the same type of ammunition as used in their weapons.
Appellant and Aquil Bond were jointly tried before the Honorable Sheila Woods-Skipper. On May 6, 2005, a jury convicted Appellant of the aforementioned charges; it acquitted him of attempted murder with regard to Antwoin Weston.*fn7 At the penalty phase, the jury found three aggravating factors*fn8 and no mitigating factors, and recommended a sentence of death. Appellant was formally sentenced to death on July 26, 2005. This appeal followed.
I. Sufficiency of the Evidence
Although it is this Court's practice to review the sufficiency of the evidence for first-degree murder in all death penalty direct appeals regardless of whether the appellant raises such a challenge, see Commonwealth v. DeJesus, 580 Pa. 303, 308, 860 A.2d 102, 105 (2004), we note that, in the instant case, Appellant does, in fact, claim that his convictions were not supported by sufficient evidence.*fn9 In reviewing the sufficiency of the evidence, this Court must determine whether the evidence admitted at trial, and all the reasonable inferences derived therefrom viewed in favor of the Commonwealth as the verdict winner, supports the jury's finding of all the elements of the offense beyond a reasonable doubt. Commonwealth v. Montalvo, 598 Pa. 263, 274, 956 A.2d 926, 932 (2008), cert. denied 129 S.Ct. 1989 (2009).
Evidence is sufficient to sustain a conviction for first-degree murder when the Commonwealth establishes that: (1) a human being was unlawfully killed; (2) the accused is responsible for the killing; and (3) the accused acted with specific intent. 18 Pa.C.S.A. § 2502(a); Montalvo, 598 Pa. at 274, 956 A.2d at 932. An intentional killing is a "[k]illing by means of poison, or by lying in wait, or any other kind of willful, deliberate, and premeditated killing." 18 Pa.C.S.A. § 2502(d); Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998). The Commonwealth may establish that the defendant intentionally killed the victim through wholly circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body. Montalvo, 598 Pa. at 274, 956 A.2d at 932.
In order to convict a defendant of conspiracy, the trier of fact must find that: "(1) the defendant intended to commit or aid in the commission of the criminal act; (2) the defendant entered into an agreement with another . . . to engage in the crime; and (3) the defendant or one or more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime." Id. (ellipsis original and internal quotation marks omitted). Each member of a conspiracy to commit homicide can be convicted of first-degree murder, regardless of who inflicted the fatal wound. Id. at 274-75, 956 A.2d at 932.
Appellant argues that he is entitled to an arrest of judgment because the Commonwealth failed to prove, beyond a reasonable doubt, that he committed first-degree murder, either as a principal, conspirator, or accomplice. In support of his argument, Appellant asserts that Smithwick's testimony only established Appellant shot someone in the leg, and that there was no evidence that Appellant shot anyone in the face or that Appellant confessed to shooting anyone in the face. Appellant further notes that, although Carter testified that Appellant was at the scene, Carter did not state that Appellant had a weapon in his hand.*fn10 Appellant's Brief at 15. He further contends that the fact that one of the guns used at the scene of the Ogden Street murder was the same gun police observed Appellant attempt to discard at 6th and Spring Garden Streets does not "tie" him to Grant's murder, as the testimony at trial established that weapons often are transferred from person to person. Id. at 16. Finally, he argues that he cannot be convicted of first-degree murder as an accomplice because there is no evidence he aided or abetted Bond, and Appellant's and Bond's joint presence at the scene "was not in any way assisting or helping or encouraging the co-defendant Bond to engage in his murderous conduct." Id. at 18.
With regard to his conspiracy conviction, Appellant maintains that, although he may have been present when Richard Brown demanded retribution for the shooting of Finney and Steed, there was no evidence that Appellant agreed to share in the criminal conspiracy to seek retribution on the rival gang members. Id. at 16. He posits that while his "presence at the scene of the crime is interesting, it still does not prove that he had joined the Conspiracy." Id. at 17.
Addressing Appellant's conspiracy conviction first, we conclude the evidence was sufficient to sustain his conviction. As noted above, Smithwick testified at trial that, following the murder of Finney and Steed on November 29, 2002, members of Richard Brown's gang, including Appellant and Bond, gathered at the home of Richard Brown's girlfriend, Tammy, and discussed their plan for retaliation. N.T. Trial, 5/4/05, at 93. Smithwick testified that, on the following day, November 30, 2002, he, Bond, and Moore went to the Firing Line Gun Store, where Moore purchased a firearm at the direction of Bond. Id. at 95. Smithwick further described how, on December 1, 2002, he again was at the home of Brown's girlfriend, Tammy, when Bond and Appellant announced they were going to 42nd and Ogden Streets to kill whoever they saw "that was hanging with Brent and Malik [and] G Bucks." Id. at 97. In addition, Carter testified that he observed Appellant and Bond circle the corner of 42nd and Ogden Streets in a burgundy Park Avenue twice before Bond exited the vehicle and approached a man who resembled Brent Jenkins. Upon realizing that the man was not Jenkins, Bond returned to the car. Carter then saw the car circle the corner a third time, after which both Appellant and Bond exited the vehicle and the shooting began. This evidence established more than Appellant's mere presence at the scene of the crime; it established that Appellant, over several days, engaged in a deliberate, pre-meditated plan to exact revenge on individuals believed responsible for the shootings of Finney and Steed. Thus, we find the evidence was sufficient to support Appellant's conviction for conspiracy.
Similarly, we hold the evidence was sufficient to support Appellant's conviction for first-degree murder. As the trial court noted, the assistant medical examiner testified that Grant suffered seven separate gunshot wounds to his body, including wounds to his left and right lungs, his spleen, his liver, his left shoulder, his arms, and his head. See Trial Court Opinion, 11/15/07, at 29; N.T. Trial, 5/4/05, at 32-34. This evidence clearly was sufficient to enable the jury to conclude that Grant was intentionally killed. See Montalvo, 598 Pa. at 274, 956 A.2d at 932 (use of a deadly weapon on a vital part of the victim's body sufficient to establish an intentional killing).
Moreover, Carter testified that he observed Appellant and Bond exit their vehicle moments before the shooting began. Ballistics evidence established that the 30 spent cartridges from the Ogden Street area where Grant was gunned down were .357 caliber Sig Remington brand ammunition. N.T. Trial, 5/4/05, at 232. Nineteen of the recovered cartridges were attributable to the specific gun identified by serial number SP0061985, which was the gun purchased for and given to Appellant by Stokes-Steadley, and which Appellant attempted to discard when stopped by police at 6th and Spring Garden Streets on April 13, 2003. The remaining 11 cartridges were determined to have been fired from the gun identified by serial number SP0061983, the gun purchased by Moore at Bond's request and recovered from the home of Richard Brown. Although the bullet fragments recovered from Grant's body could not positively be matched to either firearm, analysis revealed that they were .357 caliber with a similar configuration to the spent cartridges recovered from Ogden Street. Even assuming, as Appellant urges us to do, that the fatal bullet was fired by Bond and not Appellant, the evidence was sufficient to convict Appellant of first-degree murder as a co-conspirator. See Montalvo, 598 A.2d at 274-75, 956 A.2d at 932 (each member of a conspiracy to commit homicide can be convicted of first-degree murder, regardless of who inflicted the fatal wound); Commonwealth v. Boxley, 575 Pa. 611, 618, 838 A.2d 608, 612 (2003) (evidence was sufficient to support appellant's conviction for first- degree murder, regardless of whether appellant or one of his co-conspirators fired the fatal shot).*fn11
II. Weight of the Evidence
As an alternative to his argument that the evidence was insufficient to support his convictions, Appellant contends that he is entitled to a new guilt phase trial on all of his convictions because his convictions were against the weight of the evidence. As with his sufficiency arguments, Appellant only addresses his convictions for first-degree murder and criminal conspiracy, and our review is therefore limited to Appellant's convictions for these two crimes. As we explained in Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873 (2008), cert. denied, 129 S.Ct. 1580 (2009),
[a] motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.
Id. at 39, 949 A.2d at 879.
Appellant acknowledges that the Commonwealth's case is supported by: (1) the fact that Appellant was present when Richard Brown called for revenge; (2) Appellant was present when the victim was shot and killed; and (3) Appellant previously possessed a weapon that was used at the crime scene.*fn12 Appellant's Brief at 20. However, he asserts that the following evidence does not support the verdict:
1. [M]any people were at the meeting where Richard Brown called for revenge and from the Commonwealth's own evidence and theory of the case, not all of those people were conspirators.
2. [T]he Commonwealth has not presented evidence that [Appellant] intended to join the conspiracy nor shared the intent to kill.
3. [T]he weapon that [Appellant] possessed at 6th and Spring Garden Streets, while present at the scene of this incident, has never been placed into the hands of [Appellant] at the scene of the crime.
4. [T]he Commonwealth's only eyewitness, Richard Carter, testified that Aquil Bond was shooting but did not testify that [Appellant] was shooting.
5. [T]he Commonwealth's snitch or cooperating witness, Vincent Smithwick[,] only testified that [Appellant] claimed that he shot someone in the leg, although that would be wholly inconsistent ...